Branch Manager, National Insurance Co. Ltd. vs C.V.NARAYANAN KUTTY

THE opposite parties-1 and 2 in O.P. 295/99 on the file of the Consumer Disputes Redressal Forum, Kasaragod are the appellants. THE complainant approached the District Forum with a grievance that since the claim made as per Ext. P1, Mediclaim Policy was repudiated without just cause, the same would constitute deficiency of service and hence he is entitled to compensation. THE opposite party sought to maintain that there was suppression of material fact and thus the complainants have violated the policy conditions. Consequently the complainants are not entitled to any relief. On behalf of the complainant P.W. 1 was examined and they had produced Exts. PI to P6. On behalf of the opposite party Exts. R1 to R3 were produced. On a consideration of the said material the District Forum made direction to the opposite party to pay the insured amount with compensation and costs. THE same is under challenge. It is submitted by the learned Counsel for the appellant that the finding of the District Forum is vitiated; had the District Forum made the correct approach it would have discerned that there is no deficiency of service as according to the learned Counsel there was suppression of material facts.

THE policy was taken on 26.2.1999 and the treatment began on 1.5.1999, it was a Mediclaim Policy. According to the complainants the second complainant on consultation was informed by the doctor that he must undergo an operation under expert medical care and consequently he was admitted in Kovai Medical Centre and Hospital, Coimbatore where he underwent the operation. It is pointed out by the learned Counsel that since in Column No. 10 of Exbt. R2 it is stated that the ailment of the second complainant was from birth, it evidently was a pre-existing disease and since the said fact was withheld at the time of taking the policy, the same would amount to suppression of material facts. THE District Forum points out that Column No. 11 of Exbt. R2 was whether the patient could have been aware of the said illness was answered in the negative by the doctor. THE learned Counsel points out, as a matter of fact what the doctor had answered against Column No. 11 was that it could not have been known to the insured. Ext. R2 is the claim form where the queries had to be answered by the Surgeon who attended the patient, it is the opinion of the Surgeon that the insured might not have been aware of the said ailment. There could be suppression only when the person withholds the fact of which he aware. The crucial question, therefore, is whether at the time of taking the policy the insured could have been aware of such a disease. The doctor has answered in Ext. R2 that the insured might not have been aware. When a person pleads under an exclusion clause the burden is on that person to establish the same, it is more so as per Section 41 of the Insurance Act. Having regard to the rigour of what is required to be proved, it is not possible to agree with the learned Counsel when submitted that the answer to Clause 11 of Exbt. R2 is such that the .same would support the case of the opposite party. The next person to speak about the same was the Surgeon who answered a query in Ext. R2. A plain reading of answer Clause 11 in Exbt. R2 cannot be stated to be sufficient to discharge the burden of the opposite party. We are unable to agree with the submissions made by the learned Counsel for the appellant, appeal fails, dismissed. Appeal dismissed.